Can the Illinois Governor or GOMB use an executive order or budget directive to cut money the legislature already appropriated to an independent state agency like the State Police Merit Board?
Plain-English summary
The Illinois State Police Merit Board, which handles certifications, discipline, and promotions for State Police officers, is set up by statute to operate "free from the direction, control or influence of any other agency or department of State government." When the Governor's Office of Management and Budget tried to apply an across-the-board contingency-reserve directive to the Merit Board's appropriation, the Board's executive director asked whether it had to comply.
Attorney General Lisa Madigan walked through the budget structure, the constitutional limits on executive orders, and the Executive Reorganization Implementation Act, and concluded that the Merit Board is not an agency directly responsible to the Governor and is therefore generally not subject to executive orders or GOMB directives that would reduce its appropriated funds. The Governor cannot "legislate by executive order"; an executive order outside the narrow constitutional reorganization power is just a policy directive to agencies under the Governor's control, and the Merit Board is not one of those.
The qualifier matters: in fiscal year 2011 the General Assembly itself, through the Emergency Budget Act, gave the Governor specific statutory authority to designate contingency reserves from amounts appropriated to "all boards * * * of the State." That brief, expiring grant did reach the Merit Board for that one fiscal year. The general rule, though, is that without express statutory authority, the Governor and GOMB cannot reduce or limit the Merit Board's appropriated funds.
Currency note
This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Q: What gives the Merit Board its independence?
A: Section 7.1 of the State Police Act (20 ILCS 2610/7.1) declared that the Board exercises its powers "in an independent manner, subject to the provisions of this Act but free from the direction, control or influence of any other agency or department of State government." Section 3.1 of the Executive Reorganization Implementation Act (15 ILCS 15/3.1) also expressly excluded the Merit Board from the definition of agencies "directly responsible to the Governor."
Q: Doesn't the Illinois Constitution let the Governor issue executive orders?
A: Only narrowly. Article V, section 11 lets the Governor reassign functions or reorganize executive agencies "directly responsible to him." Outside that one slot, the AG explained, an executive order is no more than a policy directive to agencies under the Governor's control, because the Constitution's separation of powers (article II, section 1) bars the Governor from legislating.
Q: So how did the Governor reach the Merit Board in fiscal year 2011?
A: Through a statute, not an executive order. Section 1-10 of the Emergency Budget Act of Fiscal Year 2011 expressly authorized the Governor, between July 1, 2010 and June 30, 2011, to designate amounts to be set aside as a contingency reserve from appropriations made to "all boards, commissions, agencies, institutions, authorities, colleges, universities, and bodies politic and corporate of the State." That language reached the Merit Board for that single fiscal year. The Emergency Budget Act provisions were repealed by their own terms on July 1, 2011.
Q: What changed after the Public Safety Fund was created?
A: In 2012 the General Assembly added section 7.2 of the State Police Act, creating the State Police Merit Board Public Safety Fund. The statute provided that, "[n]otwithstanding any other law to the contrary," that special fund "is not subject to sweeps, administrative charge-backs, or any other fiscal or budgetary maneuver that would in any way transfer any amounts" out of the fund. Any future statute purporting to give the Governor or GOMB authority over the Merit Board's funds would have to be analyzed against that protective language.
Background and statutory framework
The Illinois budget process runs through three constitutional steps: the Governor proposes a budget under article VIII, section 2(a); the General Assembly enacts appropriation bills under 30 ILCS 105/13.4; and the Governor either signs, vetoes, or line-item-reduces those bills. Once an appropriation bill is signed into law, the appropriated amount is fixed by statute.
The Governor's executive order power under article V, section 11 is narrow: reassigning functions among or reorganizing executive agencies "directly responsible to him." Even there, the General Assembly can disapprove an executive order under the Executive Reorganization Implementation Act. The Illinois Supreme Court in Buettell v. Walker, 59 Ill. 2d 146 (1974), suggested an executive order may be a permissible method by which the Governor executes existing law, but is not a vehicle for establishing new legal requirements.
The Merit Board's independence has both a constitutional dimension (it is exercising regulatory and adjudicatory functions independently of the Governor) and a statutory one. Combining the two meant that absent specific legislative authority, neither the Governor nor GOMB could reach into the Merit Board's appropriated funds.
Citations and references
Statutes (as cited in the opinion):
- Ill. Const. 1970, art. II, § 1; art. V, §§ 8, 11; art. VIII, § 2(a)
- 15 ILCS 15/3.1; 15 ILCS 20/50-1 et seq.
- 20 ILCS 2610/3, 7.1, 7.2, 8, 9
- 30 ILCS 105/13.4
- 30 ILCS 187/1-5, 1-10, 1-35, 1-90 (Emergency Budget Act of FY 2011)
- 30 ILCS 186/1-1 et seq., 1-10 (Emergency Budget Implementation Act of FY 2010)
Cases:
- Buettell v. Walker, 59 Ill. 2d 146 (1974)
- Board of Education of Auburn Community Unit School District No. 10 v. Department of Revenue, 242 Ill. 2d 272 (2011)
- People v. Marshall, 242 Ill. 2d 285 (2011)
- First American Bank Corp. v. Henry, 239 Ill. 2d 511 (2011)
Source
- Landing page: https://illinoisattorneygeneral.gov/opinions/
- Original PDF: https://illinoisattorneygeneral.gov/dA/7f7d525e94/2013%2013-002%20STATE%20MATTERS%20Applicability%20of%20Executive%20Orders%2C%20Administrative%20Orders%2C%20and%20Directives%20Limiting%20the%20Use%20Funds.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
Lisa Madigan
ATTORNEY GENERAL
December 23, 2013
FILE NO. 13-002
STATE MATTERS:
Applicability of Executive Orders, Administrative Orders, and Directives Limiting the Use of Appropriated Funds to Executive Agencies Not Under the Governor's Jurisdiction
Mr. Ronald P. Cooley
Executive Director
Illinois State Police Merit Board
531 Sangamon Avenue East
Springfield, Illinois 62702
Dear Mr. Cooley:
I have your letter inquiring whether the Illinois State Police Merit Board (the Merit Board) must comply with executive orders issued by the Governor and administrative orders and directives issued by the Governor's Office of Management and Budget (GOMB) that would reduce the amount or limit the use of funds appropriated to the Merit Board. For the reasons stated below, it is my opinion that once funds are appropriated to the Merit Board and the appropriation bill is signed into law, neither the Governor nor GOMB may reduce or limit the Merit Board's use of appropriated funds through an executive order, administrative order, or directive, unless such action is specifically authorized by law.
BACKGROUND
The Illinois State Police Merit Board
The General Assembly created the Merit Board in 1949. See 1949 Ill. Laws 1357. The Merit Board is comprised of five members appointed by the Governor, with the advice and consent of the Senate. 20 ILCS 2610/3 (West 2012). The Merit Board exercises jurisdiction over the certification for appointment and promotion of State Police officers, as well as their discipline, removal, demotion, and suspension. 20 ILCS 2610/8, 9 (West 2012). Section 7.1 of the State Police Act (20 ILCS 2610/7.1 (West 2012)) provides:
In furtherance of the policy of this Act that the [Merit] Board shall exercise its powers and duties in an independent manner, subject to the provisions of this Act but free from the direction, control or influence of any other agency or department of State government, after June 30, 1989 all expenses and liabilities incurred by the Board in the performance of its responsibilities hereunder shall be paid from funds which shall be appropriated to the Board by the General Assembly for the ordinary and contingent expenses of the Board.
In 2012, the General Assembly enacted Public Act 97-1051, effective January 1, 2013, which added section 7.2 to the State Police Act (20 ILCS 2610/7.2 (West 2012)), creating the State Police Merit Board Public Safety Fund. The statute provides that this fund may receive State appropriations and "shall be used by the State Police Merit Board * * * to meet all costs associated with the functions of" the Board. 20 ILCS 2610/7.2(a) (West 2012). In establishing this special fund, the General Assembly specifically gave the Board the responsibility for the fund's administration and provided that "[n]otwithstanding any other law to the contrary, the State Police Merit Board Public Safety Fund is not subject to sweeps, administrative charge-backs, or any other fiscal or budgetary maneuver that would in any way transfer any amounts from the State Police Merit Board Public Safety Fund into any other fund of the State." 20 ILCS 2610/7.2(a) (West 2012).
Fiscal Year 2011 Example
In conjunction with signing the fiscal year 2011 appropriation bills (see Public Acts 96-956, effective July 1, 2010; 96-957, effective July 1, 2010), the Governor issued Executive Order No. 2010-10, which, among other things, authorized the Director of GOMB to "issue an administrative directive to reflect the reduced appropriation levels provided in the FY 2011 budget and to create contingency reserves, as authorized under the Executive Budget Act of Fiscal Year 2011." Pursuant to this grant of authority, on September 21, 2010, the Director of GOMB issued Administrative Order No. 3 directing State agencies to address the State's fiscal crisis by selling surplus State property, reducing expenditures on warehouse facilities, and eliminating unnecessary telephone lines and mobile telephones. Further, GOMB issued a directive to the Merit Board limiting Board expenditures in order to "implement a GRF reserve in the amount of 50K."
ANALYSIS
The State Budget and Appropriations Process
The Illinois Constitution of 1970 requires that the Governor annually prepare and submit to the General Assembly a proposed State budget for the following fiscal year. Ill. Const. 1970, art. VIII, §2(a). The proposed budget must set forth the estimated balance of funds available for appropriation, the estimated receipts, State debts and liabilities, and a plan for expenditures and obligations during the fiscal year. Under the State Budget Law (15 ILCS 20/50-1 et seq. (West 2012)), the proposed State budget must include "amounts recommended by the Governor to be appropriated to the respective departments, offices, and institutions, and for all other public purposes[.]" 15 ILCS 20/50-5 (West 2012). All appropriations recommended to the General Assembly by the Governor are to be incorporated into appropriation bills for the General Assembly's consideration. 30 ILCS 105/13.4 (West 2012). After passing an appropriation bill, the General Assembly presents it to the Governor who may either sign the bill into law, veto it in toto, or reduce or veto one or more individual line items.
Executive Orders
The Constitution provides that "[t]he Governor, by Executive Order, may reassign functions among or reorganize executive agencies which are directly responsible to him." Ill. Const. 1970, art. V, §11. This is the only reference to executive orders in the Constitution and, as a result, the only circumstance in which an executive order clearly carries the force and effect of law. The Governor's power to reassign functions or reorganize agencies by executive order does not extend to the Merit Board, however. Section 3.1 of the Executive Reorganization Implementation Act (15 ILCS 15/3.1 (West 2012)) expressly excludes the Merit Board from the definition of "[a]genc[ies] directly responsible to the Governor[.]"
In general, article V, section 8, of the Illinois Constitution provides that "[t]he Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws." Citing this authority, the Illinois courts have suggested that an executive order may be a permissible method by which the Governor can execute an existing law, but that an executive order is not a vehicle for establishing a new legal requirement. Buettell v. Walker, 59 Ill. 2d 146, 153-54 (1974). Accordingly, the Governor does not have power to legislate by executive order, and, therefore, unless authorized by law, an executive order relating to matters other than executive reorganization can be no more than a policy directive to agencies under the Governor's control. To conclude otherwise would cede to the Governor legislative powers which he is prohibited from exercising by the separation of powers doctrine.
As noted above, the Merit Board is expressly excluded from the definition of an "[a]gency directly responsible to the Governor" in the Executive Reorganization Implementation Act because it was "created by law with the primary responsibility of exercising regulatory or adjudicatory functions independently of the Governor[.]" 15 ILCS 15/3.1 (West 2012). This statutory language clearly demonstrates that, in establishing the Merit Board, the General Assembly did not consider the Board to be an agency directly subordinate to the Governor. Further, the General Assembly has granted the Merit Board the authority to operate "free from the direction, control or influence of any other agency or department of State government[.]" 20 ILCS 2610/7.1 (West 2012).
Construing these provisions together, it is my opinion that the Merit Board is a State agency which, generally, is not subject to the Governor's direct control. Accordingly, because its operations are outside of the scope of the Governor's power to enforce executive orders, the Board is not required to comply with executive orders issued by the Governor that would reduce the amount or limit the use of funds appropriated to the Board, unless the General Assembly specifically gives the Governor the authority to take such action with regard to the Merit Board's appropriated funds.
GOMB Administrative Orders and Directives
Fiscal year 2011 also provides an example to illustrate this analysis. Section 1-10 of the Emergency Budget Act of Fiscal Year 2011 (the Emergency Budget Act) (30 ILCS 187/1-10 (West 2010)) authorized the creation of contingency reserve funds, and provided, in pertinent part:
Beginning on July 1, 2010 and until June 30, 2011, the Governor may designate amounts to be set aside as a contingency reserve from the amounts appropriated from the General Revenue Fund, the Common School Fund, the Education Assistance Fund, and any special fund of the State for State fiscal year 2011 for all boards, commissions, agencies, institutions, authorities, colleges, universities, and bodies politic and corporate of the State, but not other constitutional officers, the legislative or judicial branch, the office of the Executive Inspector General, or the Executive Ethics Commission.
Further, the Emergency Budget Act was "to be liberally construed and interpreted in a manner that allows the State to address the fiscal crisis for the State fiscal year 2011." 30 ILCS 187/1-5 (West 2010). In case of any conflict between the provisions of the Emergency Budget Act and any other law, executive order, or administrative regulation, the provisions of the Emergency Budget Act were to prevail and control. 30 ILCS 187/1-35 (West 2010).
Under the plain and unambiguous language of section 1-10, in fiscal year 2011, the General Assembly granted the Governor the authority to designate amounts to be set aside by the indicated public bodies as contingency reserve funds from amounts appropriated from the General Revenue Fund. The Governor's authority extended to appropriations made to, among others, "all boards * * * of the State[.]"
Although it is not generally under the Governor's jurisdiction, the Merit Board is clearly a "board[ ] * * * of the State[.]" As such, the Merit Board was subject to section 1-10 of the Emergency Budget Act. Therefore, based on the plain and unambiguous language of section 1-10 of the Emergency Budget Act, it is my opinion that the Governor and GOMB were authorized to reduce or limit the use of funds appropriated to the Merit Board for fiscal year 2011. To the extent that the provisions of section 7.1 of the State Police Act conflicted with the Emergency Budget Act, the provisions of the Emergency Budget Act controlled.
Whether the Merit Board will be required to comply with future executive orders, administrative orders, or directives from the Governor or GOMB that would reduce the amount or limit the use of funds appropriated to the Merit Board will depend on the existence of legislative enactments specifically authorizing such action and the language of the enactments themselves. As noted above, section 7.2 of the State Police Act (20 ILCS 2610/7.2 (West 2012)) now provides that "[n]otwithstanding any other law to the contrary, the State Police Merit Board Public Safety Fund is not subject to sweeps, administrative charge-backs, or any other fiscal or budgetary maneuver that would in any way transfer any amounts from the State Police Merit Board Public Safety Fund into any other fund of the State." Any new law authorizing the Governor or GOMB to limit the Merit Board's expenditure of appropriated funds would need to be analyzed with regard to the language of section 7.2.
CONCLUSION
The Illinois State Police Merit Board is not subject to executive orders issued by the Governor, or administrative orders or directives issued by the Governor's Office of Management and Budget that would reduce the amount or limit the use of funds appropriated to the Board by the General Assembly, except to the extent expressly authorized by law. Consequently, whether the Merit Board may be required to comply with future executive orders, administrative orders, or directives from the Governor or GOMB that impact the Merit Board's use of funds appropriated to it will depend on the existence of a statute authorizing such action and the specific language of the statute.
Very truly yours,
LISA MADIGAN
ATTORNEY GENERAL